Failing roadside sobriety tests, and blowing under legal limit

[MaineSqueeze]

Just curious as to what you all do in other parts of the country when it comes to this. For example, Your suspected drunk driver fails the roadside tests, you bring him/her to the station, and they blow a 0.01-0.05, something low and not illegal.

In my department, its totally up to the officer, whether or not to release, or go through with the arrest. Every officer on my department is different.

I was wondering how others handle it? Do you have a policy on it, or is it up to you?

[Resq14]

This is where PBT's come in so handy. If you have a quality model that you feel comfortable with, you can use it to assist you in how to handle the situation. I always ask the driver to participate in a PBT evaluation as a fourth test.

I trust my PBT based on numerous comparison tests to the Intoxilyzer before I started making decisions like this. It's always been exactly on the money. (Lifeloc FC series PBT) Even if the PBT shows an 0.08, by the time you're back at the PD ready to do an evidentiary breath test, the BAC is below 0.08 due to the time delay.

Keep in mind drug recognition experts, too. If you have a low/no BAC and it doesn't jibe with the degree of impairment, it's something to consider.

At my agency, it's the officer's call. What I do:

NO PBT Available:
It's rare that I don't have a PBT, but let's say the batteries are dead, or I'm out of mouthpieces... or the "customer" refuses:

An arrest decision is made based on probable cause, so let's assume the arrest was made and we're now at the PD doing an evidentiary breath test with the Intoxilyzer. If the BAC is close (0.06/0.07), I would just go through with the arrest and acknowledge that the DA may drop it to a DTE, or most likely drop it completely.

Barring extenuating circumstances like a big time delay, if it's less than 0.06 I think going through with an OUI charge is a waste of time. Why? In our state, if a person has a blood-alcohol level of 0.05% or less, it is prima facie evidence that that person is not under the influence of alcohol.
http://janus.state.me.us/legis/statu...-Asec2432.html
"Unarresting" is the option I would and do choose, though it's only happened to me once.

Sure, you can opt to pursue a low-BAC OUI based on impairment, but good luck with that if the test is less than 0.08 in our state, especially in my county. "Impaired to the slightest degree" is easy to meet at a probable cause level to justify the detention. As far as a conviction goes, once you get to court, the beyond a reasonable doubt level can be a little more challenging to prove on a low test. That's why I'd choose to just "solve the problem for the night." Everyone goes home safe and sound.

PBT Available:
- If the PBT BAC is less than 0.05 and I don't find impairment, I kick them loose.

- If the PBT BAC is between 0.05 and 0.08 with no impairment, I consider having the driver locate a sober driver to bring them home vs. a trip to the PD.

- If the PBT BAC is over 0.08, I arrest.

- If there is impairment that gives rise to probable cause, I arrest.

[VSPTAC]

Originally Posted by MaineSqueeze

Just curious as to what you all do in other parts of the country when it comes to this. For example, Your suspected drunk driver fails the roadside tests, you bring him/her to the station, and they blow a 0.01-0.05, something low and not illegal.

In my department, its totally up to the officer, whether or not to release, or go through with the arrest. Every officer on my department is different.

I was wondering how others handle it? Do you have a policy on it, or is it up to you?

Depending on how poor they did on the FST's and other circumstances I would be taking someone to the hospital to get some blood.

Although, I have got some convictions on a .05

[MaineSqueeze]

Originally Posted by Resq14

This is where PBT's come in so handy. If you have a quality model that you feel comfortable with, you can use it to assist you in how to handle the situation. I always ask the driver to participate in a PBT evaluation as a fourth test.

I trust my PBT based on numerous comparison tests to the Intoxilyzer before I started making decisions like this. It's always been exactly on the money. (Lifeloc FC series PBT) Even if the PBT shows an 0.08, by the time you're back at the PD ready to do an evidentiary breath test, the BAC is below 0.08 due to the time delay.

Keep in mind drug recognition experts, too. If you have a low/no BAC and it doesn't jibe with the degree of impairment, it's something to consider.

At my agency, it's the officer's call. What I do:

NO PBT Available:
It's rare that I don't have a PBT, but let's say the batteries are dead, or I'm out of mouthpieces... or the "customer" refuses:

An arrest decision is made based on probable cause, so let's assume the arrest was made and we're now at the PD doing an evidentiary breath test with the Intoxilyzer. If the BAC is close (0.06/0.07), I would just go through with the arrest and acknowledge that the DA may drop it to a DTE, or most likely drop it completely.

Barring extenuating circumstances like a big time delay, if it's less than 0.06 I think going through with an OUI charge is a waste of time. Why? In our state, if a person has a blood-alcohol level of 0.05% or less, it is prima facie evidence that that person is not under the influence of alcohol.
http://janus.state.me.us/legis/statu...-Asec2432.html
"Unarresting" is the option I would and do choose, though it's only happened to me once.

Sure, you can opt to pursue a low-BAC OUI based on impairment, but good luck with that if the test is less than 0.08 in our state, especially in my county. "Impaired to the slightest degree" is easy to meet at a probable cause level to justify the detention. As far as a conviction goes, once you get to court, the beyond a reasonable doubt level can be a little more challenging to prove on a low test. That's why I'd choose to just "solve the problem for the night." Everyone goes home safe and sound.

PBT Available:
- If the PBT BAC is less than 0.05 and I don't find impairment, I kick them loose.

- If the PBT BAC is between 0.05 and 0.08 with no impairment, I consider having the driver locate a sober driver to bring them home vs. a trip to the PD.

- If the PBT BAC is over 0.08, I arrest.

- If there is impairment that gives rise to probable cause, I arrest.

We dont use PBT in our department for traffic stops. Are you up in the Northern Part of the state?

I "unarrested" a guy for blowing 0.03 once, but I still have yet to get a conviction for anything under 0.08 that is OUI. The few have been dropped down.

I miss the OUI's, I havnt had one in a long time. Im on Days rights now.

[Smurfette_76]

Originally Posted by MaineSqueeze

Just curious as to what you all do in other parts of the country when it comes to this. For example, Your suspected drunk driver fails the roadside tests, you bring him/her to the station, and they blow a 0.01-0.05, something low and not illegal.

In my department, its totally up to the officer, whether or not to release, or go through with the arrest. Every officer on my department is different.

I was wondering how others handle it? Do you have a policy on it, or is it up to you?

If they fail the roadside test, then they are still impaired, it just might not be on alcohol. Go get a blood test and still arrest them. NC allow for arrest on anything under .08 if the Officer can articulate impairment...anything over .08 is a given (allegedly...don't get me started...LOL)

[CruiserClass]

.04-.08 can still be DUI according to the law here, assuming erratic driving behavior, failure of SFSTs, etc.

As others have mentioned, it might be time to do a blood test or get a Drug Recognition Expert to evaluate what else may be affecting the individual's abilities.

[just joe]

Get a urine test and release them on OR.

[Gene L]

Best to get a urine test. But in GA, back when the standard was .010, the assumption was that you were drunk at that level. Now it's .08.

But when it was .010, anything below .003 carried the presumption you were NOT intoxicated, unless your driving indicated otherwise. Between .003 up to the presumed intoxication level, there was no automatic assumption...you could still charge someone if their driving indicated they were drunk.

In case of an accident that was your fault, I think anything above a .003 was presumtive of guilt.

I haven't dealt with DUI or traffic for years, and those numbers may now be different, with the lowering from .010 to .008.

I know when they experimentally lowered the age for possession and purchase from 21 to 18, the accident and fatality rate went up dramatically. The law lasted for maybe two years, then they raised the age again.

Bottom line is if your driving is impaired by alcohol, the level really doesn't matter. You're charged.

[timmyturner]

Get a DRE to look the guy over. Other than that make sure you write a tight report and charge him OUI.

[screech60]

Originally Posted by CruiserClass

.04-.08 can still be DUI according to the law here, assuming erratic driving behavior, failure of SFSTs, etc.

As others have mentioned, it might be time to do a blood test or get a Drug Recognition Expert to evaluate what else may be affecting the individual's abilities.

The same here in Montana. If between .04 -.08, you must be able to articulte the poor driving conditions you observed as well as failing SFST's, etc. I does happen, just not a lot.

[355339]

I always get a blood test so I can get alcohol and drugs. I had a guy that was so trashed, he p*ssed his pants at the PD and blew a 0.0. I never used the breathalizer again. I have video, so if for reason they come back under, I am covered.

[Blatant]

I've had several saved by the PBT. If my state .04 is the presumptive limit. That's why HGN is such as important tool to have if you do a lot of DUIs. Folks can practice the SFSTs and often do well. You can't beat the HGN, though.

Personally, given our workload, I don't bother if you blow less than .08. If you blow less than .04, I send you on your way. If .05 to .08, I call a cab or a sober driver.

But I also don't base my arrests on the PBT.
d

[1042 Trooper]

Clearly cause for a pee test. As for the arrest, the PC for the arrest is made prior to any chemical test anyway. The pee test, in my experience, always explained the low BAC.

[SammyCal1]

If there is no reason to believe there is a medical or CDS problem, I give them a ticket for my probable cause to stop and send them on their way. I then write a very detailed report of why I did what I did.

I had 1 guy with a strong odor of beer in the car. He had just finnished a long shift at work. He failed the SFSTs miserably and blew an .01. I came to learn later that he had just crack open a budweiser and took a couple of sipps. Hence the strong odor. He worked on a ship in NY harbor. Hence the failed SFSTs.

Waddaya gonna do.

Sammy

[BigRob]

In alabama there are a few different sections to check on a dui ticket. we have .08 or higher, under the influence of alcohol, under the influence of drugs, or drugs in alcohol. you can still arrest for dui if under the legal limit. but our judge will throw it out before the bg even contests the dui and before he views the tape of the field sobriety. it will **** you off sometimes cause i almost always use a portable breath test and don't usally arrest if there under the limit unless there field sobriety is that bad. oh well you win some and you lose some them.....at least there off the road for the night.

[SddR70]

As noted by some others, a PBT would help prevent a "premature" arrest.
If a subject clearly fails the Standardized Tests, without proper reasoning to do so, and a PBT indicates less than the legal limit (in my state, 0.08) I'm thinking the person is on drugs. And in that case I can arrest for Impairment. Or I detain them, get a urine sample for further testing, then follow up with an arrest later after the drug test results return. I still request a breath test at the test facility to back up any data that may result from the drug test.

When I say proper reasoning in failing the SFTs, I always ask if the person has any physical defects that may prevent them in properly performing the tests as demonstrated and described. I rattle off "feet, ankles, legs, knees, hips, lower back, whatever" and apply that learned knowledge to how I view their test results.

What's interesting, is when a person says they have all sorts of problems with their "right/left" leg and then use that one to stand on. I always make sure to point out its the leg of their choice in standing. That's a good indicator the person is impaired - or hard of hearing.

Another thing - in my state the PBT is a screening tool and the results can only be viewed as "pass or fail". But its a great screening tool IMO.

[SammyCal1]

I like when the 20 year old high school football injury suddenly starts affecting them.

Sammy

[Phlip]

In Michigan, you can be arrested and theoretically convicted of Operating While Intoxicated no matter what level of intoxication your PBT or the Datamaster may show.

[tedgmcc]

I am a DRE and I would do an Eval. on the subject.